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February 2, 2004.

IQBAL A. PASHA, Plaintiff, -against- WILLIAM M. MERCER CONSULTING, INC., Defendant

The opinion of the court was delivered by: ROBERT SWEET, Senior District Judge Page 2


Defendants William M. Mercer Investment Consulting, Inc and Mercer Consulting Group, Inc. (collectively,"Mercer") have moved for summary judgment, pursuant to Fed.R.Civ.P. 56, to dismiss the complaint of plaintiff Iqbal A. Pasha's ("Pasha"). Additionally, Mercer has moved to strike Pasha's sur-reply. For the reasons set forth below, Mercer's motion to strike is denied, and its motion for summary judgment is granted.

Prior Proceedings

  Pasha commenced this action against defendants on October 31, 2000, alleging that defendants refused to hire him as an investment consultant based on his national origin (Pakistani) and age (then fifty-four). Discovery closed on May 27, 2003. The instant motion was marked fully submitted on October 8, 2003. On October 16, 2003, Mercer moved to strike Pasha's sur-reply.

 The Facts

  The facts are set forth based upon the Local Rule 56.1 statements of the parties and supporting declarations.

  William M. Mercer Investment Consulting, Inc. is a large provider of investment consulting services to the fiduciaries of Page 3 pension funds, foundations, endowments, and other institutional funds. Mercer Consulting Group, Inc., now named Mercer, Inc., is the ultimate parent company within the consulting group.

  Pasha is a Fellow of the Institute of Actuaries in London, England and a Chartered Financial Analyst from the Association for Investment Management & Research in Virginia. Pasha has also served as a Vice President of Banque Indosuez in Paris.

  In or about December 1996, Pasha contacted his professional acquaintance, Peter Coster ("Coster"), the President and CEO of Mercer Consulting Group, Inc., seeking employment opportunities. Coster recommended Pasha to Mercer three times. On the first two occasions, no suitable jobs were available, but on the third occasion, Pasha was interviewed for an investment consultant position and for a research position.

  On or about December 17, 1999, Pasha met with Mary Sue Dickinson ("Dickinson"), the northeast regional leader of Mercer's investment consulting practice, and with Ed Heilbron ("Heilbron") in Mercer's Stamford office. On or about December 24, 1999, Pasha met with Ashgar Alam ("Alam"), the national practice leader of Mercer's investment consulting practice. Alam then suggested that Pasha interview with members of Mercer's practice's research group in Chicago. On January 14, 2000, Pasha interviewed with four Page 4 principals in the firm's Chicago research group: Jim Hiner ("Hiner"), Brad Blalock ("Blalock"), Brian Collins ("Collins"), and Louis Finney ("Finney"). Soon thereafter, Alam left Pasha a voice mail, advising him that Mercer was unable to offer him a position with the firm.

  By letter dated January 24, 2000, Pasha attempted to appeal this decision to Coster. Pasha claimed that his more extensive knowledge threatened three of his interviewers in Chicago. Following a discussion between Coster and Alam, Coster sent Pasha a letter on February 9, 2000 supporting Mercer management's decision and wishing him well in his future endeavors.

  Pasha is of Pakistani national origin, and, at the time he interviewed with defendants, he was 54 years of age. Alam is also of Pakistani origin. Alam was born in Sargodha, Punjab in Pakistan, while Pahsa was born in Hyderabad, India and grew up in Karachi, Sind in Pakistan.

  Mercer hired 50 investment consultants during 1997 through 1999, six of whom were over the age of 40, including one who was over the age of 50. Mercer hired 16 investment consultants in the year 2000, three of whom were at or above the age of 40 — aged 41, 41, and 40. Page 5

  According to Pasha, during the course of the interview, Alam "talked about `recruiting young people' from the actuarial side of the company's business to become Investment Consultants." (Compl. ¶ 8.) Pasha also alleges that Alam made reference to his own age by talking about a mutual acquaintance in Pakistan, a classmate of his who was 42-years old. At his deposition, Pasha further testified that during his meeting with Hiner in Chicago, "when we were walking out of the room, he said to me something, something, I don't recall, we should be thinking of retiring at our age." (Pasha's Dep. at 220.)

  On or about August 4, 2000, Pasha filed a Charge of Discrimination with the Equal Employment Opportunity Commission ("EEOC"). The following month, the EEOC notified Pasha that it concluded its inquiry and that "[t]he evidence . . . does not indicate that a violation has occurred," and further that it does "not appear likely that additional information [would] result in our finding a violation." A follow-up letter, dated August 6, 2003, explained:
Although the file for the above-captioned charge was lost during the destruction of EEOC's office at 7 World Trade Center on September 11, 2001, the September 8, 2000 letter indicates that our determination was made solely upon an evaluation of your charge. It does not reflect an assessment of the facts or evidence from both sides.
The EEOC issued its Notice of Right to Sue on or about September 13, 2000. Page 6

  I. Pasha's Sur-Reply

  Pasha's request to submit a sur-reply was received on October 6, 2003. Pasha based his request on new evidence submitted by Mercer, not previously disclosed in discovery. Pasha referred to affidavits submitted by Dickinson and Allan Vernick, the Senior Human Resources Manager & Principal, and to new statistical analysis. Pasha claims that the Dickinson affidavit, in particular, should have been submitted during discovery, or at the very least, during Mercer's opening motion for summary judgment. Discovery ended on May 27, 2003, and this affidavit was not submitted till August 19, 2003. In his sur-reply, Pasha argues that Dickinson's testimony should, therefore, be disregarded.*fn1 Pasha delivered his sur-reply before the summary judgment motion's return date of October 8, 2003.

  By letter dated October 16, 2003, Mercer moved to strike Pasha's sur-reply on the ground that neither the Local Civil Rules for the Southern District of New York, nor the stipulations and Page 7 orders set forth a briefing schedule that provide for sur-reply papers.

  Mercer's motion to strike is denied as Mercer submitted new information in its reply brief; Pasha timely requested permission to submit a sur-reply, notifying Mercer of his request; Pasha timely delivered his sur-reply before the return date on the summary judgment motion; and the Local Rules and stipulations do not prohibit the filing of a sur-reply. Dickinson's affidavit will also be considered.

  II. Applicable Standards

  A. The Summary ...

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